Monday, 11 September 2023
Family Law Amendment Bill 2023, Family Law Amendment (Information Sharing) Bill 2023; Second Reading
I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. As we have just decided as the Senate, given the debate will run concurrently with debate on the Family Law Amendment (Information Sharing) Bill, I ask that the Senate take note of my earlier comments about that particular measure.
There are few things in the Commonwealth Attorney-General's portfolio that have a more direct impact on Australians than family law. Every year, thousands of Australians will find themselves going through the pain and sadness of separation, and in a small proportion of those cases disputes will be decided by a judge in Australia's family law courts. As a nation, we should have a priority. We should aim for a system that resolves those disputes as quickly and as cleanly as possible. That is in everybody's interests. Where children are involved, we should at all times prioritise their best interests.
Many parts of this bill are moved by good intentions. As Senator Scarr himself, who sat on the committee that looked at this bill and inquired into it, has stated and as we also recognise, as Senator Scarr did, in particular in the additional comments that he provided through the committee process, many of the problems that the bill we have before us seeks to address—again as Senator Scarr has just articulated, in too many places, the proposals put forward by the government do not align with those problems. They go beyond recommendations made by previous reviews. They have unintended consequences, and we'll be moving some amendments to assist with addressing the unintended consequences. Or they themselves have not been road-tested. Our very real concern is that some of the solutions in this bill may actually make things worse for Australian families, and nobody wants to see that. That is something that, as legislatures, we should be very cautious about, particularly when we are dealing with a system that is meant to guide people through some of the most difficult parts of their lives.
There is an extraordinary amount that could be said about this bill, but we have limited time. In the interests of all Australian families who will be affected, there is a tremendous amount to be explored on the record. However, I will highlight a select few things. Schedule 1 of the bill deals with the parenting framework, and the most significant change in the schedule is the repeal of the presumption of equal shared parental responsibility, which applies when courts make parenting orders. Now, the introduction of that presumption was a triumph. It was indeed a triumph of bipartisan and sensible reform. Prior to 2003, there was widespread concern about how courts dealt with contact and residency issues for children after a relationship breakdown. The way courts approach those issues left many parents feeling excluded from their children's lives after separation. Often this turned the debate away from the benefits that children derive from a positive and caring relationship with both parents and focused on arguments about equal time.
Against that backdrop, many will recall, Prime Minister Howard commissioned an inquiry into the family law system that was chaired by Kay Hull AO and resulted in the landmark report Every picture tells a story: report on the inquiry into child custody arrangements in the event of family separation. That report was remarkable in that its recommendations were unanimous and bipartisan, something we should all be incredibly proud of. The report was remarkable again in that it involved a roll call of Labor luminaries: Julia Irwin, the Hon. Graham Edwards, Jennie George AO, the Hon. Roger Price and Harry Quick. They joined with the coalition members of the committee to work through the issues. That took a number of years. Why? Because they wanted to get it right, and they were united in recommending a rebuttable presumption of equal shared parental responsibility. Their recommendations were then given effect by changes to the Family Law Act that was then passed in 2006.
Now, among other things, the reforms said that the courts must apply a presumption that is in the best interests of the child for there to be equal shared parental responsibility. The essence of the idea is that, where it is safe to do so, parents should cooperate in raising their children. Critically, the presumption does not apply in circumstances where there is abuse or family violence, and it is not a presumption that parenting orders should allocate time to parents on a 50/50 basis; rather, it is about the shared responsibility that parents have for decision-making about their child after separation.
The 2006 reforms established important guide rails on how parenting orders should be made. Now, when we look at the case for change, the reforms proposed by Labor in this bill remove those guide rails. I can assure you that the coalition recognises that the law needs to keep up with the changes in society. We recognise absolutely that there is room for improvement and we also recognise the overwhelming body of evidence is that this needs to be improved, and that is actually why it was the former coalition government who initiated the Australian Law Reform Commission's inquiry into the family law system.
What did the ALRC state in relation to the presumption of equal shared parental responsibility? The ALRC said 'that it supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiation between parties and recommended the concept be retained'. It did agree in principle with the existing exceptions to that presumption. However, this is what the ALRC also noted that 'in practice, parental responsibility has often been conflated with equal time arrangements. That conflation could then detract from a focus on the child's best interests.' So what the ALRC actually recommended was the law needs to be clarified. Specifically, it recommended that the provision be amended to replace the presumption of equal shared parental responsibility with a presumption of joint decision-making about major long-term issues. That approach was also supported by the joint select committee inquiry into Australia's family law system, chaired by the Honourable Kevin Andrews. That committee expressly considered the ALRC recommendation and acknowledged that the presumption is often conflated with equal time. The majority on the committee recommended amending the wording of the presumption to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children.
Let's now look at the approach that the government has taken in this bill. What we have is the work has been done, the recommendations are clear that the presumption should be reformed and clarified, and the coalition agrees with that. But Labor's approach in this bill goes that much further. They want to repeal the presumption entirely. It is illuminating that when he consulted on the exposure draft of the bill, the Attorney-General, in typical style, never bothered to ask whether or not the presumption should be retained. He treated repeal as a given yet that is not what the body of evidence is in the presumption. The independent, impartial and expert recommendation of the ALRC, under this Attorney-General, never actually had a chance.
Labor, under this Attorney-General, has abandoned the careful bipartisan approach that led to the introduction of the presumption in the first place. I would say that is actually a sad thing for Australian families. If I look very briefly at the definition of 'member of the family', schedule 3 of the bill extends the definition of 'relative' for Aboriginal and Torres Strait Islander children to include anyone who is considered a relative in that child's culture. We support this in principle, but, in the Attorney's enthusiasm, yet again, like so much that he does, in ramming this bill through this place the practical implications of extending that definition have not been considered. There are some obvious consequences.
There are obligations in the Family Law Act to notify the courts about family violence. The changes in schedule 3 mean that, for Indigenous children, 'family violence' would include violence amongst anyone who falls within the extended definition. The effect of the changes introduced would be to apply the notification obligation to a much wider group of people. You would therefore have an obligation to notify the court even if the people involved were not raising the child, and you'd never need to notify for a non-Indigenous family. It leaves open the possibility that people who were not involved in the litigation could have their medical and police records subpoenaed. It also imposes an additional, more onerous burden which applies only to Aboriginal and Torres Strait Islander children.
Late on Friday, Labor circulated amendments to address this issue. That is welcome, if somewhat belated, as we had already raised this issue—it is a belated change, but it is a welcome change. But what does it actually tell us? It tells us that the bill the Attorney has tried to ram through would actually have made things worse for Aboriginal and Torres Strait Islander families. That is unacceptable. What else has he therefore missed in trying to ram this bill through? We don't know. Despite our request, Labor opposed an inquiry that would have actually asked the communities. Let's go ask the communities about how they feel about how these changes would work in practice. What do the changes mean for communities in Palm Island and Alice Springs? What is the interplay with the child protection system? Well, we actually won't know now until after the bill is passed.
In relation to the review of the operation of the Federal Circuit and Family Court in schedule 8, it is a measure on which the government chose not to consult. It is about the review of the merger of our family law courts, and it brings forward the review date by two years. Why would the government do that? We know from the committee process that the measure was included solely at the request of the Attorney's office. No-one else was asking for it. When you actually talk to the federal and family law courts, guess what? They don't want it. But what we do know is that this particular Attorney-General has an ideological fixation on opposing the Family Court's merger, despite the evidence that shows that, finally, we've had a step forward in providing a better experience for Australian families.
The family law courts should exist, first and foremost, to serve Australian families. It is their interests that should come first, not the ideological interests of the Attorney-General or the concerns of lawyers or judges. This is about the best interests of the Australian people. And, despite years of COVID lockdowns and disruptions, the early indications are that the merger has been extremely successful in reducing the amount of time that Australian families spend being dragged through Family Court processes. In other words, the merger is working in their best interests. But, instead of allowing the courts the time to bed down these changes, the Attorney-General, because of his ideological opposition, wants to now bring forward the review date. He wants to relitigate the issue. It is a point of pride for him. He wants his ideology to come before the interests of Australian families. Quite frankly, I will reject that type of opportunism. Changes to the family law system should aim to reduce the pain, cost and time associated with separation. They should not be a place for political pride.
So, as I've stated, the coalition agrees that many of the issues this bill tries to deal with should be addressed. The problems are well recognised, but, in the committee process, we need to explore further the unintended consequences that some of these changes will have. It is sad for Australians that, in putting this bill before the parliament, Labor decided not to try and work with the opposition. They decided to abandon bipartisanship. As I said, we will be moving a number of amendments to this legislation. In some cases, Labor themselves have already recognised they made a mistake, and we will support the amendments Labor are putting forward because we would have moved those amendments ourselves. But there are other amendments that we will move in good faith to make this bill a better bill. As Senator Scarr asked, why did they take the word 'meaningful' out of 'relationship with the child'? We will move an amendment to put that word back in, and I would ask for the government please to consider our amendment seriously.
I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023, and I note at the outset that the Greens will be supporting both of these bills.
After years of inaction and unnecessary and damaging inquiries, I welcome some positive reforms to the family law system. The family law amendment bills aim to make the family law system safer for women and children, and they do this by putting children's welfare first. The Family Law Amendment Bill does a number of things, which include removing the presumption of equal shared parental responsibility. This is a damaging and regressive provision, implemented by the Howard government, which has been widely misconstrued in the community and often weaponised in family law court cases to claim equal time with children, even when that is not in the best interests of the child, such as in cases of domestic and family violence. Repealing this presumption will make the family law system safer for women and children.
The Family Law Amendment Bill also expands the definition of 'family member' to better capture First Nations cultural norms and kinship arrangements. We support that. I'm pleased to see a new requirement for independent children's lawyers to actually meet with the child and give them the opportunity to express a view about proposed parenting arrangements. We also welcome the broadened duty of lawyers and judges to act to achieve the best interests of children.
The Family Law Amendment Bill also gives the minister the power to develop accreditation standards for family law report writers, which are long overdue. I've had countless people raise concerns with me, both through Senate inquiry processes and in separate meetings with me over many years now, the varied quality of family law report writers. There's no quality control despite the crucial role that those people play in the court process, and the conclusions that they draw are often unquestioned and very difficult to challenge. We urge the government to move quickly on the accreditation standards for family report writers. Get this done! It will have a huge impact and there's not a moment to lose.
The main bill also clarifies the restriction on publishing details of Family Court matters to ensure that information can be provided to relevant authorities. That's obviously similar to the accompanying Family Law Amendment (Information Sharing) Bill, which introduces a new framework aimed at improving access to information from state and territory family violence and child protection systems during family law proceedings. They're important reforms because they empower the family law courts to procure from state and territory agencies information related to family violence, and they provide for the admission of that information into evidence.
This brings me to the issue of perpetrators subpoenaing counselling records of victims-survivors as part of family law cases. The exposure draft of the main bill did propose some restrictions to this, but they were deleted from the final bill after feedback from stakeholders on this sensitive and complicated issue. Attempting to weaponise a person's confidential records through the family law courts is an obvious abuse of power and privilege, yet, as evidence to the Senate inquiry into these bills made clear, a blanket ban on access to medical or psychological records is not always helpful, as that information can both identify and conceal evidence that's useful to keeping women safe. It is important that the right balance be struck to protect vulnerable people. It's important to ensure that people who are seeking the mental health support and counselling they need won't fear that information becoming public or known to a perpetrator and then used against them in family law cases, deterring them from seeking the help they need. It's also important to ensure that the court has the information it needs to decide what's in the best interests of the child. I'm pleased that the government is reconsidering the shape and nature of these amendments and working with stakeholders to strike that balance. We would like to see the government progress those reforms promptly and in a way that both protects survivors and ensures the court has the information it needs to make decisions about the best interests of the child. We look forward to engaging further on that crucial topic.
The women's safety sector and legal advocates have long called for a child safety focus, and these bills at least partially deliver on that. However, their child-safety-focused outcomes can only be achieved with adequate resourcing of the court system. The court system was already set back by the abolition of the specialist Family Court under the Morrison government. Very few in the legal profession thought that the Federal Circuit and Family Court merger was a good idea. Conservative estimates suggest that at least 60 per cent of Family Court matters involve family violence, and other estimates have it at 90 per cent. Even those that don't involve violence regularly involve complex parenting or property matters. The loss of specialisation in a court that relies on specialist expertise to navigate complex matters and to ensure the safety of children has only made those existing pressures more extreme. Reform should strengthen a system, not lead to the diminution of specialisation. The now-amalgamated Federal Circuit and Family Court has taken some steps to recognise and expedite family law matters where violence or child abuse is alleged to be occurring, but there is still the need for specialist judges and court officers to deliver justice properly.
Moreover, we hear so many tales of how poorly the court recognises and deals with violence against women and children. This is not the first time I've said this, nor will it be the last: we urgently need comprehensive family and domestic violence education and trauma-informed training for the judiciary, legal practitioners, independent children's lawyers, family law report writers, the police and all others associated with the court process. Justice delayed is justice denied so, in addition to that trauma training, the court needs more resourcing. Review after review has confirmed that the entire family law framework is overstretched and underresourced. The government must ensure that legal aid, community legal centres, Aboriginal and Torres Strait Islander legal services, family violence prevention legal services and various peak bodies have adequate and secure funding to provide timely advice and representation to parties. Failure to strengthen that legal assistance sector will simply exacerbate the delays and costs that directly impact on the accessibility and quality of justice.
Whilst the legislative reforms that we're debating today are welcome, full funding for frontline family and domestic violence support services is needed to ensure that women and children don't remain at risk. And, as always, the community legal sector deserves ample and secure funding. I'm a former CLC lawyer myself, and that sector is crucial to access to justice; it provides top-quality legal advice and support. CLC lawyers move mountains to assist their clients and they often do so either for free or for a fraction of the price that clients would need to provide in the private sector. I note that the NLAP review, which is a review of the five-year funding agreement between the states and the federal government for legal centres is currently underway, and I urge that it deliver appropriate financial recognition to this vital sector. I extend my deep gratitude to all the advocates, practitioners and frontline service providers who continue to fight for better protections for vulnerable people and for a safer family law system. This is critical work, but it's not easy work, and we thank you for all that you do.
The improvements to the family law system in the upcoming bills are important ones, but there is much more work to be done. At this stage, I will move a second reading amendment to the info-sharing bill on behalf of Senator Thorpe; it has been circulated, as amended, in the chamber. At the request of Senator Thorpe, in respect of the Family Law Amendment (Information Sharing) Bill 2023 I move:
At the end of the motion, add ", but the Senate calls on the Government to work with the states and territories to ensure that training on family violence is provided to employees or officers involved in the information sharing scheme established by this bill, including training on:
(a) recognising the dynamics of family violence;
(b) working with victim-survivors of family violence; and
(c) response-based practice and cultural competence in relation to family violence".
I rise to speak on the Family Law Amendment Bill 2023. The bill provides significant reforms to ensure that children's best interests are placed at the centre of the family law system and its operation. This is a fundamentally important reform and something that is much needed. I served on the select committee inquiry into family law with some people who are in the chamber now. I have to say that I didn't have any personal experience in family law previously, but this certainly opened my eyes to what happens—the prejudice and the impact that going through this process has on children. Therefore, I'm very proud to be here and able to support this bill.
As I said, after sitting on the joint committee on family law, I heard so much evidence provided to the committee about improving the family law system. This reform has said on a consistent basis that putting the rights and interests of the child in family law disputes should be the No. 1 priority within the family law system in this country.
This bill clarifies the needlessly complex framework in the Family Law Act 1975 for determining parenting arrangements to ensure that the best interests of children are the focus of decision-making. This is the Albanese Labor government delivering for the interests of the child and in the interest of families and their communities. These laws impact whether your child's at a day care centre or in school—it's very complex, the impact that this has on the child's welfare, on those who are caring and on those who are educating, to try to balance the relationship between parents and the child. This bill responds to consist an calls from women and children's safety advocates for a focus on safety and a repeal of the presumption of equal shared parenting responsibility. The bill also implements a number of improvements to the way family matters are managed. These changes will increase a court's ability to prevent harm to parties and children from protracted and adversarial litigation.
For those of you who have been following this bill, it was introduced in the Senate on 13 June 2023. The bill was also referred to the Senate Legal and Constitutional Affairs Legislation Committee for an inquiry and report by 24 August. I commend my fellow committee members for the work that they did in relation to this bill. The committee made seven recommendations for further changes to the text of the bill, and the Albanese government supports these recommendations. I'll note the detail of some of these recommendations. First, amendments have been drafted to schedule 1 of this bill to include specific reference to consideration of the history of family violence, abuse and neglect as factors that a court must consider in parenting orders. These amendments also strengthen language that recognises the importance of cultural connection for Aboriginal and Torres Strait Islander children. For recommendation 2, amendments have been drafted to the application provision for key schedules and parts to ensure the changes apply to all matters after commencement, except where final hearings are under way. For recommendation 3, amendments have been drafted to remove specific provisions for the awarding of costs in parenting order compliance and enforcement matters. This will avoid duplication of the court's discretionary power to award costs in family law matters under section 117 of the Family Law Act. For recommendations 4 and 5, amendments have been drafted to the bill to expand definitions of 'member of the family' and 'relative' for Aboriginal and Torres Strait Islander children. These amendments will ensure it is clear that kinship systems are captured within these definitions. They will also guarantee that disclosure obligations do not apply to Aboriginal and Torres Strait Islander peoples as a result of these expanded definitions. For recommendation 6, amendments have been drafted to repeal subsection 111(1B) of the Family Law Act in conjunction with regulation change. This will enable the objections of the child to a return order to be taken into consideration under the Hague Convention on the Civil Aspects of International Child Abduction.
The recommendations also reflect the views of key stakeholders such as the Law Council of Australia and Women's Legal Services Australia. As such, they are expected to be well received. I thank those organisations for their ongoing advocacy for these very important changes that, unfortunately, impact so many lives in this country.
The committee made two further recommendations to the government to undertake an education and awareness campaign on the bill and develop appropriate protections in relation to the use of sensitive information. The Family Law Amendment Bill 2023 represents the government's commitment to improving the family law system, so that it is accessible, safer, and simpler to use, and so that it delivers justice and fairness for all Australian families. It is crucial for this bill to be able to ensure that it is safer and simpler, and that it delivers justice and fairness to all Australian families.
Most importantly, it places the best interests of children at the centre of the system and its operation. I can't believe that we had to introduce a bill that would do that. Having heard evidence not only in relation to this bill but in the select committee, I find it very obvious that in the community there is a lot of anger, a lot of misunderstanding and a lot of interpretation of the law. To be frank with you, it is just devastating to hear about some of the impact on children and young adolescents, in terms of their mental health and their general health, from going through the family law system. So we have to do something. It's crucial that we streamline it and make it simpler. Sometimes, along the way, it would be nice to remember that these people were once in love. Therefore, they should remember that when making provision for their children going forward.
As I said before, I'm proud to stand here before you in the debate on the Family Law Amendment Bill 2023 because it's a great policy initiative, a bill that will make tangible differences to improve the lives of Australians who go through the family law system. As I pointed out earlier, the family law system has been subject to a number of significant inquiries in the past decade, including the Australian Law Reform Commission inquiry which produced the 2019 report Family law for the future: an inquiry into the family law system (ALRC report 135) and the 2019 to 2021 inquiry by the Joint Select Committee on Australia's Family Law System, which I served on and which opened my eyes, unfortunately, to the implications of a breakdown in families and the impact that it has on those individuals and, more importantly, on their children. These inquiries consistently identified challenges for the family law system, including overly complex and confusing legislation, community misrepresentation about the law, and the regularity of protracted and harmful litigation. It is now time for the government to address a backlog of recommendations for legislative reform and to centre the best interests of children in the family law system.
The Albanese government is committed to the ongoing improvement of Australia's federal courts. To this end, this bill also seeks to enhance the operations of the Federal Circuit and Family Court of Australia. I'm confident that the reforms will ultimately strengthen the voice of Australian children in family law matters by introducing a requirement for independent children's lawyers to meet directly with children. Further, it will increase judicial discretion to appoint independent children's lawyers in matters under the Hague Convention on the Civil Aspects of International Child Abduction. The bill will provide courts with greater powers to protect parties and children from the harmful affects of protracted and adversarial litigation. The bill will also make the restrictions on the publication of family law proceedings clearer and easier to understand for both legal professionals and people with a non-legal background.
I thank my fellow Legal and Constitutional Affairs Legislation Committee members for their work on this bill. Further, I would like to recognise the tireless work of the Attorney-General, Mark Dreyfus, in helping to make this bill become a reality in this place. It is long overdue. It's not as if we haven't been aware of the impact that going through the family law system has been having on both parties, as well as their children. So it's regrettable that it's taken an Albanese Labor government to do this, after nine years of the previous government and the work of other committees. I know that the legal and constitutional affairs committee have done other inquiries, so they have had advice about this. We know that the legal aid commission and so many other groups have been advocating for children to become the centre of concern and for the necessary changes to be made to ensure that child safety and welfare are front and centre in the family law courts. So I'm very happy to be here and to be able to support the Family Law Amendment Bill 2023. I acknowledge the Attorney-General for his leadership in making this bill a reality. I will always give credit to those who bring about change for the better, which is why I'm very happy to be here as a member of the Albanese government. We are doing everything we can to help Australian children navigate their way through the implications of going through the Family Court without harm.
I commend this bill to the chamber, and I urge those who are contemplating any amendments to consider the bill and their amendments. If they're for the better, then no doubt the chamber will view those as it should for better outcomes for all of those. I commend this bill to the floor.
At the outset, can I just pick up the last point Senator Polley made, which is a generous comment and certainly reflects my view: that any amendments put forward by any senator in this place with respect to this extraordinarily important bill, the Family Law Amendment Bill 2023, which will have such an impact on families and on children across this nation, should be considered very, very carefully and in a non-partisan manner. From my perspective, all of us want to see the best interests of children at the centre of these decision-making processes. That's my genuine, passionate belief, and I'm sure it is shared by senators across the chamber. Having started this process this week, let's hope that at the end of the week we can reflect on a process where all amendments, whoever they have been moved by, have been moved in good faith to enhance and improve the legislation and have been carefully considered by this Senate.
As a preliminary comment, I'd also like to put on the record my thanks to the witnesses who appeared during the one-day inquiry and to the members of the secretariat, who turned around the report in very quick order. We only had a one-day inquiry, unfortunately, but it was a very fruitful inquiry. In particular, I would like to thank those witnesses—I'm sure Senator Waters would agree; she was there when they gave their testimony—who shared their personal experiences and the difficulties they faced as they navigated the family law system, including in areas where they were subjected to awful personal circumstances, including coercion. It was quite inspirational to hear from those witnesses.
I would also like to acknowledge Senator Green, who raised issues in relation to the implementation of the Hague Convention on the Civil Aspects of International Child Abduction. The recommendation in that regard in relation to the bill is a very positive recommendation, and I'm very pleased the government has taken that on board. I compliment Senator Green in relation to her contribution in that regard.
Senator Polley raised one point that I would like to correct. I respect her perspective, but it should be remembered that it was actually the previous coalition government that referred the Family Law Act to the Australian Law Reform Commission for review. The coalition government had heard the views in the community that there were issues that needed to be addressed, and it did exactly the right thing in referring the act to the Australian Law Reform Commission for review. There was an important recommendation made by the Australian Law Reform Commission that has not been picked up in this legislation but ought to be picked up. I will speak about that shortly.
Another preliminary comment I would like to make is that we must remember that the vast majority of these cases are settled outside court. That's a great thing for the families—for the parents and for the children. Wherever possible, these matters should be decided in a non-adversarial process and agreement reached between all parties when they're going through a separation process. So, when we're considering the amendments to this bill, we need to appreciate and understand—the Law Council of Australia and various other people who made submissions were very clear on this—that the Family Law Act is perhaps a unique piece of legislation in that many Australians refer to the actual sections to work out what principles apply. They actually read the bill themselves in some cases, to work out what path they should be taking. That is perhaps unique in terms of the legislation that this place considers, but in my view these amendments need to be carefully considered, because I think there are ways in which they can be improved.
The last preliminary point I want to make is to absolutely and totally endorse the comments of Senator Waters with respect to funding for community legal organisations. Senator Waters, probably more than anyone in this place, has firsthand experience of the importance of those organisations. A continual theme through all the submissions made to the inquiry into this bill has been that it's one thing to impose obligations upon people but another thing to actually fund the community legal organisations who are going to assist in the implementation of those obligations. The two cannot be divorced. There needs to be appropriate funding for the process. In my view, it is a false economy to deny that substantial funding that's required, especially for our community legal organisations, who are assisting some of our most vulnerable Australians to navigate through this process. So I commend Senator Waters on her comments in that regard.
Given the time available, I'm going to limit my comments to the parenting framework contained in part VII of the Family Law Amendment Bill. This is the framework that deals with parenting orders and child custody orders and is perhaps of most interest to Australians. I think the bill is nearly there and that this chamber as a whole could support the bill, with a few tweaks, in its totality. So, again, I ask the government in particular to consider a number of amendments to the bill, which are put forward in good faith and in a spirit whereby we think it would actually be a very positive thing if this Senate could unanimously support the amendments to the Family Law Bill. I will move through three of those proposed amendments now.
The first is with respect to the principles and objectives clause. For those listening in the gallery or at home, the issue here is that at the moment the Family Law Act, as regards parenting, custody arrangements and orders, is extraordinarily complicated. To draw that in stark relief for people listening, I will quote from one judge, who described applying the best-interests framework—that is, in terms of making orders in relation to children in their best interests—as 'a dilemma of labyrinthine complexity to arise'. I think that means it's complicated. That person is a judge. It's complicated; I'll translate for you. Another judge, Judge Riethmuller, outlined the complexities of the pathway in an article titled 'Deciding parenting cases under part VII: 42 easy steps'. I think that underlines the position we have: it's too complicated at the moment; the considerations et cetera need to be rationalised, and we will get a better outcome in that regard.
So, the case for reform has been met, and I absolutely support the reform process. However, at the same time as the simplification is occurring, there are very important elements of the bill, in particular in relation to the principles and objectives, that reflect what I believe are community expectations around both parents. The benefit to a child—subject to safety issues and subject to domestic violence issues, of course—must be paramount. Those must be respected. But, subject to that, a number of signposts and guidance in the principles and objectives call upon the court to consider the positive impact of both parents being involved in the parenting of their children. I don't think we should remove those. I don't think we need to remove those. I think it's actually contrary to the best intentions of all of us to remove those, because parents going through this process need to be able to openly act and see what those principles and objectives are, because they will provide a signpost.
The government says those principles and objectives are too complicated. From my perspective, they're written in standard, basic English, and I think every Australian would understand them. But, at the same time as the government is saying that we need to simplify, a reference to the Convention on the Rights of the Child remains in the principles and objectives. People reading the bill are given an internet link where they can go and read the Convention on the Rights of the Child, which covers a whole range of matters. On my count, there were six articles that deal with parenting orders out of approximately 30. On the one hand, the government says, 'We want to simplify it,' but, on the other hand, in the principles and objectives people are referred to the UN Convention on the Rights of the Child, which, to be frank, is a piece of international legalese. I can't imagine your average parent who doesn't have a legal background actually understanding a lot of the concepts contained in that convention. Absolutely, simplify it, but in my view, the government is removing the simplest parts. I genuinely think that's counterproductive, and I think we could come to a better solution in that regard.
The second point on parenting orders with respect to children is something I talked about in my earlier contribution. One of the things the court needs to consider is a slimmed-down number of best-interests tests, which is appropriate, provided they're amended to take into account past family violence, abuse and neglect. The government is proposing to amend one of those best-interests tests this way. At the moment, the act reads, 'the benefit to the child of being able to have a meaningful relationship with the child's parents.' The government is proposing to take out the word 'meaningful'. Why take out the word 'meaningful'? The government says, 'This will simplify it.' But the point is that the very act of taking out that word, 'meaningful', sends the wrong message to the community. A strong theme that has come through all the contributions on this debate is that this process is as much about sending a message to the wider community as it is about the legal drafting itself. The Law Council of Australia has said, 'Keep the phrase "meaningful relationship". That phrase has been the subject of case law over many years.' The experts from the Law Council of Australia—the specific state jurisdictions of family law practitioners—are saying keep the word 'meaningful'. We know what that phrase means. It actually assists them to advise their clients and assist parents to come to resolutions outside the court process. That's what the legal practitioners are saying. Is the reform process going to be derailed over one adjective? Surely not. Keep that word, 'meaningful', in that best-interests test. There's no reason not to. I know the Attorney can be obstinate at times—we all can. I can be; everyone can be. But there is no reason why we should not keep that adjective, 'meaningful'. There's no reason at all. It sends the wrong message.
The third point I will to make in relation to parenting orders is on the case that's been made in relation to reform of the so-called equal shared parenting presumption. Many parents, when they're discussing these issues, equate it to mean 'equal time'. It was never intended to mean that, but that confusion is there and needs to be addressed. The Australian Law Reform Commission proposed that there be a presumption, always subject to safety issues and the best interests of the child, that there should be a prima facie assumption in the initial stages of joint decision-making between parents about major long-term issues. They would include things such as education, religion and health. That's something the Australian Law Reform Commission suggested in terms of the drafting. If you're going to get rid of the presumption of 'equal shared parenting responsibility', you need to replace it with something else. Their recommendation was to replace it with 'joint decision-making about major long-term issues'. Again that makes absolute sense in terms of the drafting.
I want to conclude my contribution by quoting Professor Bruce Smyth, an expert in these matters—more expert than Senator Scarr. He said:
Children themselves are clear on the importance of having at least a safe and loving home after parental separation—or ideally two such homes.
He and family law practitioners in Queensland, Western Australia and the Hunter Valley all suggested—and recommended—that there is substantial merit in adopting the Australian Law Reform Commission's suggestion. I truly hope that the government takes those comments as they were intended, as they were made in good faith to enhance the bills.
I rise to speak to the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I begin by thanking my colleague Senator Larissa Waters for her leadership and tireless advocacy over many years for better support for women and children.
The Family Law Amendment Bill will primarily amend the Family Law Act with the aim of making the family law system safer and simpler for separating families to navigate and ensuring that the best interests of children are placed at its centre. The Greens welcome the introduction of family law amendments aimed at putting children's welfare first in family law matters. For far too long our family law system has been fraught with challenges, leaving children caught in the crossfire of disputes and decisions that they should never have to bear.
Since the Howard government rewrote Australia's family laws in 2006 we've seen the presumption of shared care weaponised, instead of the best interests of kids coming first. The women's safety sector and legal advocates have long called for a child safety focused court. We look forward to these reforms moving closer to that goal—and I really thank all the advocates who have worked so hard for the changes that are being made today—but these outcomes can only be achieved with adequate resources, and the Federal Court and the Family Court and the National Plan to End Violence against Women and Children remain woefully underfunded.
Gendered violence is at the core of many cases in the family law system, and we know that children frequently bear the brunt of violent relationships and protracted legal matters. The reforms proposed in this legislation are grounded in the fundamental principle that the best interests of the child must always be paramount. This means that the mental, emotional and physical wellbeing of our children must guide every decision, every judgement and every action taken by our family law system.
One of the most significant changes is the establishment of a single entry point for family law matters, which will not only streamline the process for families in crisis but also ensure that the focus remains squarely on the needs of the child. Another key reform is the focus on family violence victims. This report stresses the need for greater support for victims of family violence, recognising that this is a critical component of the proposed reforms.
The Australian Greens believe that women have the right to equal respect, responsibilities, opportunities and outcomes in society. Women have the right to enjoy equality to men in all spheres of society, and their human rights, experience, knowledge, work and other contributions to society should be recognised and valued equally to men's. That is why the Greens platform calls to eliminate violence against women at home, at work and in public and to massively increase investment in the measures that would help us achieve this.
In addition, one key way that the government can provide women with more economic security and support when fleeing violent relationships is by raising the rate of income support. Last year Anne Summers published her report on violence and poverty and revealed that government payments offered little support for those leaving violent relationships. There is still so much more to do. Our social security system should support people when they lose their income, when they fall sick and when they are seeking safety from a violent partner. Income support payments like JobSeeker are far below the poverty line and they don't offer the financial security needed for people to pay the rent, let alone find new accommodation.
I want to use the rest of my time here this morning to share a story with you which was told to our Senate Community Affairs References Committee inquiry into poverty. This was the heartbreaking testimony of witness A. It shows why we need not just the family law system to be reformed but our whole social security system to be upgraded to truly put the rights of women and children at the forefront. We need holistic reform. Witness A told us:
Seven years ago, I unexpectedly became homeless as a result of domestic violence. It was in just one weekend that the coercive control that I'd lived with for my whole marriage suddenly escalated to the point where my life was threatened. When I tried to protect myself and my children, they were threatened as well. I went to a refuge with my children. My then husband withdrew all the money from our joint bank accounts, which was all we had, and he hid it. He also started legal proceedings against me in the Federal Circuit Court so that I would be the respondent and I would have no choice but to leave the refuge to appear in court and also to find and somehow pay for legal representation for the next 5½ years. That's how long the Family Court proceedings took. I had no option to opt out because I was the respondent.
So it's been seven years of alternating between precarious employment and unemployment, of homelessness and ongoing housing insecurity and food insecurity …
I'm trying to explain to my kids that we can't afford things but I'm not able to explain how we got into this situation, because of being legally barred from disclosing the domestic violence to them. I've had seven years of pretending to my kids that I'm not hungry or I've already eaten.
… … …
There's the anxiety of ongoing abuse from the ex, with threats of retaliation at times, and also the ongoing financial stress from the financial abuse.
… … …
I was not allowed to work during the marriage. I had a long time out of the workforce, and since then I've had to … take very low paid and physically—and psychologically—unsafe jobs. I didn't have an option. I had to remain housed; otherwise, I would lose care of my children. In two of those jobs, I was left with severe trauma from workplace psychological injuries, and each time the compounded traumas made it harder to find suitable employment afterwards.
With housing, I was put on a priority housing list seven years ago, but nothing's ever come of that. Over the last seven years in private rentals, I've never, at any time, paid less than 80 per cent of my income in housing. Sometimes it has been more than 100 per cent. But I knew that if I ever became homeless again, that would be the end of my shared care of my children. I've managed to stay housed only by, once, going begging to church authorities for emergency rental assistance and, another time, by receiving a one-off victim recognition payment from DCJ just at the point where I had no means of paying my next month's rent. Next time that happens, I won't have anywhere left to turn.
There have been a lot of health effects. The first few years I lost a lot of weight both from the stress and from not eating much. Then I had a lot of gut problems and developed an auto-immune disorder which I didn't recognise for a long time … Last year I had emergency gallbladder surgery. I knew I had some gallbladder issues, and I had a few bouts of excruciating pain, but I couldn't afford to see a specialist, so by the time I ended up in emergency my gallbladder was rupturing. I also have chronic migraines, but I can't afford to see a specialist or get good medication for that.
I've tried a couple of times to study part time to try to get some qualification that would help me get better jobs that would pay more than $25 an hour. Twice, I've had to quit the courses I was doing partway through because the supports just weren't there that would help someone in my circumstances to succeed in study. My kids' education has been affected as well, despite my best efforts to shield them. I can't afford the extracurricular activities and expenses. They wear donated uniforms. The teachers get them in trouble for not having the right shoes. It's really unfair. As my kids have got older, I've seen them trying to pretend to me that they didn't really want to do the things that they couldn't do. That makes me really sad.
In terms of my social life, it's really hard, because I can't just go and meet up with a friend for coffee—I can't afford to do that.
… … …
Lastly, I want to talk about income support payments. A couple of times during this time, I've been unemployed for a while, and I've needed to access income support payments—first Newstart and then Jobseeker—but after my most recent experience with Jobseeker I decided I was never going to apply for it again. What I found was that the interactions with the Centrelink people and the job agency replicated the coercive control and the psychological abuse dynamics of the marriage that I had escaped. The loss of agency, the verbal abuse, the gaslighting tactics and the dehumanisation from those agencies made me suicidal. My risk of suicide was higher as a result of dealing with Centrelink than it was from the direct incitements to suicide from my ex-husband. I've decided that I would rather literally starve to death slowly if I am out of work again . I've come close to that a few times, but I'd rather go that way than deal with Centrelink again.
I want to thank Witness A for sharing that with us. It just shows the interaction of all of the government policies and systems that are needed if we are truly going to be putting the needs and the rights of women and children first.
This bill makes some welcome changes, but so much more needs to be done to support women like Witness A and their children across family law, housing and income support. So I urge the government to treat this bill as another small step forward and to commit themselves to make the holistic changes that are still required, particularly with income support and in investment in public, social and affordable housing. These are all required. They're actions that this government can take, needs to take and must take if we are going to put the rights of women and the rights of children at the centre of everything that we're doing.
I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. There's no doubt that matters of family law strike at the very core and heart of our society. We know that families are the very bedrock of our society. Of course, any change that we make to the family law system needs to be dealt with quite sincerely and with real care. I have no doubt about the intentions and the motives of the government in bringing forward these changes.
In the last parliament, I actually moved to establish the Joint Select Committee on Australia's Family Law System. It was an inquiry that ran over most of the term of that parliament. We heard from many witnesses. We had over 1,300 individual confidential submissions. I've got to say that what I heard in the time that I spent engaging on this issue and hearing from those witnesses was some of the most moving and challenging evidence that I've come across in all of the time—the four and a bit years—that I've been here in this place. When it comes to issues of family law, when a marriage breaks down or when partners separate, particularly when it involves children, it's probably the biggest issue that's ever occurred in someone's life. And so, when those people bring forward their personal stories, they can be very challenging.
We know that most couples are able to manage their affairs without needing to engage with the family law system, and they're able to work through their personal situation and deal with it in a way that doesn't involve the courts and doesn't involve the complication of everything that's involved. But we know that, for those that do require engagement with the family law system, it can be very complex and very costly. It goes over an extraordinary length of time. It's something that, frankly, if it can be made better, should be. So I do welcome the government bringing on the Family Law Amendment Bill.
I feel that it's a little rushed. As I said, that inquiry that we held in the last parliament ran over almost an entire term of that parliament. We hit COVID. We were able to hold a number of hearings pre COVID. We were in Queensland—in Townsville, if I recall, Rockhampton and Brisbane. Then the Prime Minister had the address to the nation and shut everything down while we were at the airport to fly to Sydney, so the rest of the hearings that we held were held virtually. They were held as we heard from people from around the country over the screens of their mobile phones, iPads or computer screens. Nonetheless, we heard some very powerful evidence. There were 13 hearings over that inquiry.
I think this bill, though, is a little rushed. There are some drafting issues that need to be resolved, many of which are resolved by the amendments that Senator Cash has foreshadowed, which go to fixing, in particular, some drafting issues and some issues that probably weren't really thought through. I do want to commend my colleague Senator Paul Scarr for the work that he did and the substantial work that he put in to preparing those additional comments that are contained in the committee's report that we're considering here today. I want to commend him for that. It's been very helpful to me to understand the particular changes for this bill, which I'll go through in a moment. I do want to commend Senator Scarr for his work that he put in. I know that he personally did it and had a great amount of insight. To have someone with a law background helps. When I was on that committee—I don't have a law background; I've got a background in social services –in the last parliament, I was able to engage very much on the practical, families issues that arise whenever there's a family dispute and whenever there's a separation, but Senator Scarr bringing his experience of law has been of real assistance and no doubt was to that committee too.
Family law is complex. Above all, it directly impacts families, which are, as I said, the very fabric of our society. Every year, tens of thousands of Australians find themselves going through the pain and sadness of separation. Some of the measures in these bills, in particular the second bill that we're dealing with, which is the information sharing bill, are welcome. But in many areas, especially the Family Law Amendment Bill, we recognise that there are serious issues, and the solutions proposed, frankly, go too far or are untested. And so, when we're passing law, particularly in this area, we must be very careful.
There are few things in the Commonwealth Attorney-General's portfolio that have a more direct impact on Australians than family law. Every year, tens of thousands of Australians, as I said, find themselves going through the pain and sadness of separation. These measures go some of the way to addressing that but really, as I said, are untested.
We join with the government in recognising that many of the issues this bill seeks to address are problems that are in real need of a solution, but in too many places the proposals put forward by the government in the bill do not align with those problems. They go beyond recommendations made by previous reviews and are not supported by the profession. They have unintended consequences and have not been road-tested in communities on the ground. The coalition's very real concern is that, although we join with the government in recognising these problems, the solutions in this bill, as I've said, are untested and may actually make things worse for Australian families, and that is something that we as legislators must be very cautious about.
In the report that I referred to from the last parliament, from the Joint Select Committee into the Family Law System, in the first interim report of that committee, the committee received evidence both in favour of and objecting to the repealing of the presumption for equal shared parental responsibility and the requirement to consider equal time. We heard from people on both sides of this debate. Many of the professionals said that this element needed to be amended, but many of the parents that put in submissions said it actually needed to be strengthened. The committee also heard that there should be a mandatory starting point of fifty-fifty care in all parenting arrangements. That wasn't a view that was universal, but there were many that brought that view forward to the committee.
I want to quote from the Lone Father's Association's submission. They said:
There appears to be no evidence that the many separating parents who have gone down this pathway by consent have had their experiences considered, rather we suspect that the presumption for shared care is under attack for reasons considered in respect to parents who are unable to reach any parenting agreement and take the matter to the Federal Circuit Court or the Family Court as their first and only option. There appears to be little or no account for facts which apply to a significant number of successful shared care arrangements by consent.
The Australian Brotherhood of Fathers said:
The proposal is regressive and, if implemented, would, we firmly believe, be highly detrimental to the best interests of children. The proposal fails to acknowledge that the overall interests of a child, including with respect to safety, are best served by promoting the active involvement of both parents in a child's life …
That is critical. Amending the definition so that it requires those key decision points in a child's life to be considered, rather than maybe having this fifty-fifty minimum requirement, is possibly one way of addressing that. What's meant by 'key decision points'? Well, that's decisions on what school the child goes to, expenditure commitments for the child, and the church or religion that they might participate in. These are key decisions that the courts can use to determine the strength of the decisions going forward, so that's something that needs to be considered.
The final report of the Australian Law Reform Commission, which the committee considered, says:
It appears that the primary basis for confusion is the presumption of equal shared parental responsibility, rather than the general concept of parental responsibility.
So it's not just about the amount of time that is spent; it's about the responsibility that parents can take. The Australian Law Reform Commission's report said:
Although the equal shared parenting provision refers to parental responsibility, rather than care, submissions and consultations confirmed widespread confusion outside of family law system professionals about its meaning. This is despite provisions later in the Act clarifying its application as requiring joint decision making about major long-term issues.
The Australian Law Reform Commission were commissioned by the former government, by the Attorney-General at the time, to look into this matter, and their report said that an earlier report by the Family Law Council had:
This bill, in many ways, picks up on those recommendations that were made, and in that sense it's welcomed. Referring to a report by the House of Representatives Standing Committee on Social Policy and Legal Affairs, the ALRC report said:
It also urged the ALRC to consider the removal of the presumption of equal shared parental responsibility, and to develop amendments to Pt VII of the Family Law Act, which governs parenting arrangements.
This, of course, goes to the very heart of the matter, and I think it's probably the element of this bill that is the most contentious. It is certainly the element that I've received the most feedback on. So I'd encourage the government to consider adopting the amendments that Senator Cash has foreshadowed, because they go to clarifying what is intended, what is meant and what is required to make sure that families are supported.
The family law system can be simplified, but in the remaining time that I've got here I just want to say that there does need to be more support given to families that are going through a separation, and there needs to be much more information so that families know what they can do and what steps they need to take. The previous government invested significantly in various programs that go to helping families. The Lighthouse project is one of those programs. It fast-tracks cases involving family violence, which we know is just an absolutely insidious issue within our nation. In fact, it's getting worse—certainly in my home state of Western Australia, we know that the rates of domestic violence are going up and that it's becoming a very, very serious issue.
These are matters of law, of course—law that the courts can use to determine the future for families—but I think much more attention also needs to be put on the types of programs and services that are offered to families to assist them in managing their family law matters, and just managing the process going forward. The more people we can keep out of the courts and out of the system, the better; but the more that we can help to keep families together and prevent some of the issues that actually cause separations in the first place are obviously always going to be welcomed. The government can do much more in this area, and I encourage the government to consider that. As I said, they should consider the amendments brought forward by Senator Cash. But I would also urge the government to look at the programs and support services, to be funded in a more significant way.
I rise to speak on the bills currently before the Senate, the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I want to keep my contributions to the First Nations elements of these bills, but I would also like to wholeheartedly echo the contributions of my colleagues Senator Waters—she has done some amazing work on this issue—and Senator Rice. These bills and these changes are long overdue and provide much-needed modernisation to this legal framework. Of course there's still a lot of work to be done in the family courts but this is a step in the right direction. In particular, I want to focus on two elements of these bills. The first is the requirement for a standalone best-interest factor to promote the best interests of First Nations children and their rights to connection, culture, family, community and language, and the second is the broadening of the definition of 'family' to include the concept of kinship.
I can't overstate how important these changes are; in particular, they come from my own lived experience. It's vital for the wellbeing of our children that they're connected to culture and also to country. Country sustains us as the traditional custodians of this land. We have taken care of this land for tens of thousands of years; it is our birthright and our sacred privilege to be on country and to care for country. As we care for and sustain our country, country cares for us and sustains us. But it's also that connection to our country and our kinship which mainstream Australians usually call their 'family tree'. The kinship connection is a matrilineal process; it governs and tells us who we are related to and also involves our totemic, or our moiety, systems.
Our kids belong on country, they belong in our community and they belong with their culture, learning from their elders, taking care of their community and learning their language, their stories, their dances and their songs. This is inherently in the best interests of children. In fact, it's crucial for their psychological safety and wellbeing; studies have shown that disconnection from culture and family for First Nations children can have a significant impact on their mental health. This includes loss of identity and trauma; unfortunately, children may never recover from this. Children being removed from their families can have a long and intergenerational impact, as we have seen with the ongoing impacts and trauma from the Stolen Generations.
Something that's important to take into account is the fact that children might have parents from different mobs from different areas. They need to have considerations about how both of those parents may wish to provide their children with a chance to connect to culture and to country. First Nations people have a unique concept—and therefore definition and understanding of—of family. It is called 'kinship'. As a First Nations person, I have not only a responsibility to care for my immediate family, which includes my mother, my siblings and my children but my obligations also extend to my kinship. This extends to my nieces, my nephews, my cousins and members of my community; we consider them all as part of the immediate family. Indeed, a lot of our children's connection to culture comes from our kinship relationships, so, in a way, these changes are intrinsically linked to each other.
The NSW Aboriginal Women's Advisory Network explained this well in their submission to the inquiry into the Family Law Amendment Bill, saying:
It is not enough for an Aboriginal child merely to watch NITV, or to be taken to Aboriginal events, such as NAIDOC events, or to participate in Aboriginal cultural programs, that are not specific to their nation and kin. It is also not enough for a child to only have contact with an Aboriginal member of the extended family who is not biologically related to the child, in lieu of any direct connection with the child's Aboriginal parents—
or their kinship connections—
For too long, the current interpretation of the law has not been inclusive of a child's kinship relationships, so court orders have placed children in the care of people outside of these kinship relationships. The courts' recognition of kinship will play a very important role in ensuring that children enjoy their rights to culture, family, country and, in particular, language. In their submission to the inquiry into the bill, SNAICC, the Secretariat of National Aboriginal and Islander Child Care, recommended that ACCOs—the Aboriginal community controlled area—receive funding to develop practice guidelines and deliver training to develop the capability amongst judicial officers and other professionals in the family law system to apply these concepts. They also said:
The guidelines and training should be aimed at to judges, lawyers, legal service officers, social workers and other support staff who are involved in making determinations on the meaning of member of the family or relative.
… it is critical to recognise that notions of kinship and associated obligations cannot necessarily be taught and learnt. A set of practice guidelines would assist by explaining general and common concepts; however they would be unable to capture the varied nature of cultural practices that are specific to different Nations.
As we in this place know, they are not all the same.
We know that First Nations kids are still being taken from their families at unacceptable rates; in particular, in my home state of Western Australia, which has the highest rate of child removal. We know the trauma and disconnection caused to parents, families and the wider community, and we know that they disproportionately impact First Nations families. There is still a lot of work to be done to bring these rates down and to prevent people from appearing in the Family Court in the first place. This work needs to be holistic and led by the community. It must include health reform, education, housing, family and domestic violence services, cultural centres, opportunities for kids and families to get out on country and care for country, after-school programs that are culturally appropriate, support for new families and so much more. When communities have the resources they need to look after themselves and each other, they absolutely do. It is in our blood to look after our mob. I've heard stories of kids who've been taken to Macca's for a feed but won't eat because they want to take it home to their brothers and sisters who are not there to share it with them.
First Nations people are some of the poorest and most vulnerable people in this country, but we are strong and resilient, and it is culture, community and country that give us strength. So, whilst these reforms are welcome, it is so important that the courts take culture and community into account. There is so much work to be done within the Family Court system, but also, importantly, for our kids even to be on the radar of child services across this country.
I rise to join colleagues in making a contribution to the debate on these important pieces of legislation, the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023, which are before the Senate today. Obviously, matters of family law are critically important to the future of this nation. The family unit, of course, underpins who we are as a society, and the laws relating to how we manage families, in the multitude of forms they take on, are critically important. Family breakdown is a fact of life—a very sad one, a distressing one, but one for which we need to find a way to ensure that the laws of this country support those who are going through such a stage in their life, including and particularly those who experience extreme disadvantage in this space, which of course is children. I know many of my colleagues have spoken about this by putting the perspectives in relation to the need for these laws to support and protect children who are going through the experience of family breakdown. Ensuring that we get these laws right is critically important.
I think it is important to point out, before I get into the substance of my contribution, that in the spirit of getting these things right we need to make sure every perspective is considered properly and fully and is ventilated in a way that is meaningful in terms of the outcomes we reach with the legislation we produce in this place. These are not just words on paper. These are laws that impact people's lives forever. If we don't get these things right then the impacts of bad laws and bad programs that flow as a result of that are life-changing and have an intergenerational impact, which is something I'll touch on a little later in my contribution.
But the amendments to this legislation that were provided by the government were distributed after close of business on Friday, and here we are, at the first order of business on Monday, dealing with it. Obviously that means some of the changes being proposed here haven't had proper consideration. That is concerning. Now, that doesn't mean everything that is being proposed is somehow bad, but it's very difficult to know. I know work has been done through the weekend to assess and understand these amendments being proposed by the government. But, again, this is so critically important, and it is essential that we get this right when we are dealing with the most important and foundational element of our society, and that is the family and the laws that relate to how we assist them in, frankly, some of their most trying times.
As referenced earlier, the utmost care is needed when it comes to a system that deals with family breakdown and the elements that apply to families in traversing this very difficult part of anyone's life, particularly when it comes to children. We need to ensure that we protect and preserve the family unit as a paramount concern, because that's what shapes us as who we are today. Everyone who experiences childhood is shaped by their family experience. Sometimes that is a very negative experience. In this society, sadly, we see extreme numbers, and I recall what Senator O'Sullivan said in his contribution about the increasing incidence of family violence occurring in his home state of Western Australia. That has a negative impact on those who are experiencing those situations, and it will shape them for life. How we respond to that is central—how we make sure there are the proper supports when the family unit disintegrates and how we protect those who are fleeing family or domestic violence, particularly children, who have no say, who are not the perpetrators but the victims in every instance. How we deal with the supports they need is central to this debate.
We need to avoid anything that is even remotely retrograde in regard to the laws that govern family breakdown and how we support families going through that process. As I said before, anything that takes a backward step in terms of protections, considerations by the court and the family law system that would ensure the best outcomes for family members has an impact, not just on the individual—the spousal partners and how their lives are moving on from that point post separation—but also on the children. Once a negative impact is experienced because of a system that doesn't properly support them, as I said before, that permeates through generations, just as, sadly, instances of family and domestic violence permeate through generations and have a significant impact for many generations beyond those in which the initial instance occurred. We have to prevent that from being something that continues, and that's why these laws must be right.
As I know others in this debate have said, we should aim for a system that resolves disputes quickly and cleanly. That's what users of the family law system want. They're going through enough on their own with regard to family breakdown. People don't do this for fun. They do it because they have serious situations they're facing—sometimes life-threatening, as we know. Particularly where children are involved, we do need to prioritise the best interests of the child and those who are disadvantaged in the situations.
As the shadow attorney-general, Senator Cash, has already indicated, some of what has been proposed in these bills is welcome and certainly needed, particularly when it comes to the second of the bills before us—the Family Law Amendment (Information Sharing) Bill. But we need to recognise that just because these proposals are put forward, it doesn't mean that they're the right solutions, and that is where the concerns of the opposition arise. We look at what is put in place by way of law, and everything we do has a flow-on impact. We don't know what impacts will be felt by some of these changes—many of them will be unintended, and that is what concerns us most. So, while we join with the government in seeking to recognise the problems—and some of the issues this bill seeks to address are problems in need of a solution—too many of the proposals and that have been put forward by the government don't align with what the problems actually are. If a solution isn't fit for purpose, if it isn't actually going to address the issues that families are facing, and that the family law system and the experts who operate in that system are telling us need to be resolved, then why are we doing this?
I turn back to that point about getting this right. Circulating amendments after close of business on Friday only to debate these bills in the Senate the following Monday as the first order of business—cognately, too, I might add. Previously, we were looking at dealing with these bills separately, given the importance of them and the sensitive nature of the legislation we're dealing with here—the need to protect the family unit and to preserve a foundation stone for our society. Yet these amendments have been brought in at what one might call the eleventh hour, and we are now debating them, no doubt with a move to resolve this legislation as a matter of urgency at some point in the near future.
In terms of committee inquiries into this legislation, only one hearing was held. A great many submissions were made with regard to this legislation, and I had a bit of a look through the submissions from the various stakeholder groups and experts around the concerns they have. Some expressed support for some elements of the legislation; others had concerns that were far-ranging. One hearing to deal with the multitude of issues that have been raised? Again, it's not just some simple piece of legislation that relates to any other ordinary, everyday piece of business—this is a set of laws that relates to the protection and the preservation of the family unit. That's why I'm concerned to hear that there was only one committee hearing in relation to this legislation. As Senator O'Sullivan said in his contribution, the joint select committee which operated in the last parliament over an extended period conducted—albeit on a broader range of issues—13 hearings, which sounds more befitting of something as serious as family law and related matters. I suspect that the proponents and supporters of that joint select inquiry had the view that it was an important area of law and, therefore, we need to make sure that what we do in this space we get absolutely right.
The responses in the legislation we have before us go beyond the recommendations that have been made by previous inquiries and reviews, as we already know. Many of them aren't supported by the profession. I know there are mixed and varied views around the legal profession, but I tell you what—in terms of the operation of the legal system and the laws that relate to particular areas, including family law, I would be taking the advice there. The fact that the profession have indicated that they are, in some cases, not supportive of what's proposed here needs to be taken absolutely seriously. As I've mentioned already, there may be unintended consequences of serious legislative proposals that haven't been road-tested in the community. We don't know what consequences might flow from them.
These are sensitive and serious matters relating to some of the most vulnerable people in our community at the most distressing point in their lives. Amendments to these bills were circulated on the last business day after close of business, and as the first order of business in the Senate this morning we are dealing with these amendments in a cognate debate on the bills, which is very concerning. What could possibly go wrong? To that end, I'll look at some of the issues that have been raised and need to be considered. As we know, there is a list of primary considerations and additional considerations to be considered by the court in relation to the best interests of the child. The removal of the term 'meaningful' with regard to a relationship is immensely concerning. A 'relationship', as a definition, could mean very little. It sounds very much like a tick-a-box type of approach to a link between a child and an individual. 'Meaningful' has the characteristic of some familial relationship where there is a strong bond, a respect, a love and a desire and willingness to protect. It is something that is linked to the family unit. The removal of that terminology is something that many experts and many submitters, including the Law Council of Australia, have expressly raised as an issue that should be corrected. The fact that we are moving away from that is something we look at as a retrograde step.
I think also the starting points around the parenting framework—ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, when in the best interests of the child; protecting children from abuse, neglect and family violence; ensuring children receive adequate and proper parenting; and ensuring that parents fulfil their duties and meet their responsibilities—are not controversial, and neither are the general principles that underlie those objects that need to be considered. Obviously, the materials that relate to the system—the various supporting documents, such as the 91-page explanatory memorandum about amending this legislation—which I think everyone agrees need to be simple, clear and straightforward, are not something that families who are going through family break-up, particularly in highly distressing situations, are going to be looking at in any depth or at all when they want to get the best outcome for themselves and, importantly, for their children. There are a range of measures there, which I know colleagues have spoken about at length. They include, as the shadow Attorney-General has said, the presumption of shared parental responsibility as a starting point for negotiations. The ALRC made the point that that should be retained as a starting point. That doesn't translate directly into shared custody. I've raised a number of concerns here. Amendments have been circulated at the eleventh hour. Here we are rushing the debate. It's very concerning, and we need to make sure we get it right.
Like my colleague Senator Duniam, I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I'd like to associate myself with some of the comments that my colleague Senator Duniam made in his contribution, which I was keeping an ear out for. One of the most important jobs we have in this place, with some of the greatest impact, is setting the rules, boundaries and parameters by and within which our family law system operates. This is something that impacts on a huge number of Australians. Whether or not they end up having an interaction with the family law system, just knowing that that system is robust and will look after the interests of all parties involved, particularly the interests of children, in a careful, considered and appropriate way is fundamentally very important, and it is part of our role to undertake that consideration.
The Senate, as we know—as we often talk about in this place—is also a chamber of scrutiny. It is our job to ask questions about how any piece of legislation will impact upon the lives of Australians, and we have several ways of doing that. One of those ways is through the Committee of the Whole process in this chamber, and I'm sure that we will be having a lengthy Committee of the Whole process for this legislation that we are speaking about here today, given the concerns that have been raised by a number of my colleagues.
We also have the Senate standing committee review process, which is when legislation is sent off to committees for review, as this legislation was. It was sent to the Senate Standing Committee on Legal and Constitutional Affairs, which is deputy-chaired by my friend Senator Paul Scarr, who's in the chamber right now. I was quite shocked and surprised to hear that, for these significant changes to our family law system in this country, that committee was in a position to conduct only one hearing into this legislation. I'm sure it was not by any fault of my friend and colleague Senator Scarr. This is not a simple piece of legislation. There were many, many submissions to that Senate inquiry. I think it is disappointing that that committee was only able to find the time to conduct one hearing. I would have liked to see some further scrutiny placed over this bill. But, as we know, our Senate standing committees are controlled by members of the government, so I will just leave colleagues with that thought for a moment.
But there is no doubt, as I've said, that the family law arena is a very important and complex area of the law. We know that, every year, tens of thousands of Australians will find themselves going through the pain and the sadness of a family separation. While a small proportion of these cases are ultimately decided by our family law courts, there are still a very large number of Australian families going through what can be a very traumatic and difficult process. As I said, knowing that the laws that can deal with these issues—whether it's at the very worst end of the spectrum, where the court does have to become involved, or, indeed, leading up to that—are robust and appropriate is important. Where families with children are involved, we must ensure that the best interests and particularly the welfare of those children are at all times prioritised by our family law system.
In the last parliament I sat on a select committee that was established by the parliament that specifically looked at Australia's family law system in a very holistic way. It was a long-running and long-reaching committee inquiry. Given that it had such a broad scope, we heard from numerous witnesses that appeared at committee hearings, some of which were right at the start of the pandemic and others of which had to continue on online, as the case was, as we went through that process. We heard from many witnesses. We had many thousands of submissions, some of which are on the public record and some of which were confidential. From reading those submissions and hearing the words from people who had been directly impacted by our family law system, there is no doubt in my mind that, when people are dealing with family separation, for the overwhelming majority of them, that is one of the worst experiences that they will go through in their lives.
Again, Australians deserve to know that their family law system is operating in a way that can help and protect them and deal with the competing interests in a fair and reasonable way when they have to go through that process. Keeping that in mind, we have to remember that if we're going to tamper with those laws, as legislators in this place, or if we're going to update or change those laws, that we have a responsibility to scrutinise those changes appropriately.
The coalition does welcome and supports a number of the measures that have been presented in these bills which we're debating here concurrently today, particularly those in the Family Law Amendment (Information Sharing) Bill 2023. That said, we do have concerns that other measures in the bill have not necessarily been supported by all stakeholders, are untested and, therefore, potentially could have unintended consequences and effects. I'll go into some of these issues in a moment. But, again, it goes back to this question: how are we, in this place, appropriately scrutinising legislative change, particularly in a sensitive area of the law and particularly in an area of the law that, when it does impact upon Australians, does so when they're at their lowest ebb? That's what I learnt from my time on the Joint Select Committee on Australia's Family Law System during the last parliament. People are at their lowest ebb when they're dealing with our family law system, so we need to know that when we change the laws around that system we're giving due consideration to all of the consequences. As I said, the coalition does have some concerns about the consequences of some of the changes that we're debating here today.
One concern that has been raised by stakeholders, including the Law Council of Australia, is the change to the list of considerations for the court with regard to parenting decisions. Currently, the court is required to consider the benefit of a child being able to have a 'meaningful' relationship with parents and other people who are significant to the child, where it is safe to do so. This bill that we're debating here today removes the word 'meaningful' from that consideration, so that it would require the court to consider only the benefit of the child having 'a relationship' with parents and other significant family members. There is, of course, a large difference between having 'a' meaningful relationship and a 'relationship' with anybody, because 'a' relationship could be a very irregular or rudimentary form of contact. I don't think you need to be a legal expert to figure that out. If you remove the word 'meaningful' it does, to an extent, reduce the threshold that might be required to establish whether or not such a relationship exists. The Law Council expressly raised this as an issue which needs to be corrected, and the coalition certainly agrees with this concern.
As I mentioned earlier in my contribution, the safety of children must be the highest priority when we're dealing with our family law system and when we seek to change the legislation that underpins that system. We have to have the safety of children in mind as our highest priority. We're unsure why the simplified list of factors for consideration in this bill does not require the court to consider existing family violence orders and the basis upon which they were made. It seems that the bill would have been a good opportunity to make that a requirement, given how relevant any existing family violence orders and the circumstances of those orders should be to the considerations of the court. Clearly of course, those factors would be considered closely by the court, but they're absolutely fundamental to these decisions. On face value, it seems that they should be a required consideration. It's one thing to say, 'Well, of course, any reasonable court, any reasonable judge or any reasonable lawyer would take these considerations into account—they would consider existing family violence orders.' But why not make that a requirement? Again, through the inquiry that was conducted in the last parliament, it was evident to me that once there were family violence orders involved in a family law dispute, they added an extra layer of complexity to the situation and—certainly, I think—increased the likelihood that the family separation would end up going through the court system. So there are very good and sensible reasons for that, but why shouldn't that be a requirement of the court?
We also note that concern has been raised by some in the family law profession that the government's simplified list risks overlooking a number of important factors. It's been expressed by some that guidance could have been included specifying factors to be considered, including the child's maturity or level of understanding; whether a parent has been engaged in parenting in the past—including their obligations to maintain a child financially; the likely impact of any change in circumstances; and the practicalities of any arrangement.
Once again, of course the courts are likely to consider some or all of these factors, where they're relevant, but the concern is that if we aren't providing suitable guidance within the legislation specifying that these matters should be considered, they may not always be prioritised properly. Similarly, the bill cuts the objectives and principles of the parenting framework in the Family Law Act. It repeals the objects and principles that have guided families and courts for many years which are set out in section 60B of the act. The explanatory memorandum says that despite appearances to the contrary, the intention is not to lose these objects and principles. If that's the case, why take them out to start with? The problem is that in seeking to simplify it, though, taking some of these objects and principles out of the act does risk sending the message that the priority has changed in regard to those objects.
As the act stands currently, the intent of the parliament is clear. It makes clear that the parenting framework intends to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, where it's in the best interests of the child to do so; to protect children from abuse, neglect and family violence; to ensure children receive adequate and proper parenting; and to ensure that parents fulfil their duties and meet their responsibilities. Those are four very simple and straightforward points that I don't think any fair-minded Australian would disagree with—that we need to have consideration of these things when considering the operation of a parenting framework. These things are not controversial and they should continue to be central to our Family Law Act.
If all those objects and other principles are still relevant—and, to be fair, the Attorney-General's explanatory memorandum says that they are—why then are we removing them from the relevant legislation with this bill? It does seem counterintuitive to remove them from the act just in the name of simplification. I think we should seek to simplify things when they're overly complex, and when simplifying them serves a purpose. But those four principles that I read out are not complicated. Like I said, they're principles that most fair-minded Australians would agree should be considered within our family law system. It just seems somewhat nonsensical to seek to remove them at this point.
Just in summary: many of the changes in the family law amendment bills that we're debating here today were made with good intentions; we recognise that, we support some of the changes that are in the bills and we join with the government in recognising that many of the issues that these bills seek to address are problems that need a solution. Like I said, I spent a lot of time on the family law committee in the last parliament and I don't think that anybody in this place would think that our family law system is perfect. But in too many places the proposals that are being put forward by the government in these bills do not align with those problems. They go beyond recommendations made by previous reviews, they aren't supported by the legal profession, they have unintended consequences and, in many cases, they haven't been road tested on the ground. The coalition's very real concern is that although we join with the government in recognising these problems, the solutions in these bills are actually going to make things worse for Australian families. We cannot afford for our family law system to make things worse for Australian families. As I said in my very first moments of this contribution, that's something that we, as legislators, should be very cautious about, particularly when we're dealing with a system that's meant to guide families through some of the most difficult parts of their lives.
I rise to make my contribution to the debate on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I'll first say thank you to those who participated in the Senate inquiry, and particularly to my colleague Senator Scarr for the work that he did on the additional comments that have been made by the coalition in that report process. It is extremely important that this debate be conducted in the finest traditions of this place, because this legislation goes to the heart of what is happening in our communities. It goes to our families. We would all prefer that there weren't arguments, disputes, concerns, within family units, but, as a part of this debate, we're acknowledging and we're realising that, sadly, that is a reality. So we are dealing with the realities of family life and the issues that occur through human frailties, and I come to this debate not as someone who's a lawyer or who has training in the law but as a member of the parliament who sits down with families—sometimes fathers, sometimes mothers, sometimes grandparents—who are trying to navigate their way through what is for them a complex legal system but has the overlay of high emotion.
One of the real difficulties is that, when you are in a highly emotional state, it's difficult to make rational decisions. Your emotions take over. And so, for this parliament to ensure that there is a sound set of guiding principles that families can look to when going through the unfortunate moments of family breakdown and family breakup, they can apply those principles to that process. Now, with apologies to all the lawyers out there, it is best if families don't need a lawyer to get involved and can come to an agreed solution to their circumstance, bearing in mind that, particularly in the circumstance where there are children involved, this is a lifelong thing. This is a lifelong circumstance that they have to deal with.
There wouldn't be too many families in the country that aren't touched by it. I recall a discussion back in 2003, when the last major consideration of family law was undertaken, and the process that this parliament went through with the committee, chaired by former member Kay Hull, to look at all of the issues and to bring forward to the parliament a process of solution. In that circumstance, fortunately, we had cross-parliament agreement on the outcome. The last thing that we need in this space is for it to become an issue that's divided around partisan political lines. We need to come together as a parliament to provide an agreed, sensible solution that provides appropriate guidance to Australians who are dealing with these matters, even if they don't have to involve the legal profession. That's why I made the points that I did about the work with Senator Scarr and the coalition's comments in relation to the committee, because it's important that we soundly and sensibly work through the concerns that the coalition still has with the legislation as it stands and the guidance that it provides to families even if they don't require the services of the legal system to make their decisions, because they do look to the law. They do look to the law and they look to the principles of the law in making their decisions.
We shouldn't forget the extended families, as I said earlier. I've sat down on a number of occasions with grandparents who are looking after and raising their grandchildren and dealing with the difficulties, and I've spoken to grandparents who don't, for some reason, have access to their grandchildren, which prevents those children, who sit at the heart of what we're talking about today, from having their full family experience. If there are sound and good reasons that they don't have access to grandparents on either side, that should be appropriately reflected in this legislation.
There are a couple of things about some of the solutions that the government has put forward in this bill that the coalition are concerned will actually make things worse, particularly in the context of meaningful relationships and how those are defined and the removal of or changes in those provisions in the legislation. Understanding what children are looking for—understanding their perspectives and their capacity to make their own decisions—is really important. But, as I've said a couple of times, whether or not families are using the legal system to resolve their issues, they look to what the law says as guidance, because, if it progresses to the stage where they do need to go to the law, they're already on the path. So the guidance that we give them through this parliament, in that sense, becomes extremely important, and it's incumbent on us to come to a sensible agreement on that. This cannot be a matter of partisan divide. We don't want to be inserting our fight into the concerns that might sit within a family. They've got enough to deal with. We need to get this right, we need to do it cooperatively, and we need to work together to ensure that actions that occur are done appropriately. We should listen to the professionals who are providing us with advice on that. The court considering the benefits of meaningful relationships therefore becomes very important. If the Law Council of Australia expresses this as a concern, I think we should listen.
Likewise, arrangements that promote safety should be considered as a part of the process. As we listen to the children, we should be prepared to provide some guidance to families about the children's maturity, level of understanding and capacity to make appropriate decisions. There are a whole series of factors there that can be appropriately looked at and considered, such as whether a parent has been engaged in parenting in the past, including their obligations to financially support the child.
We as a coalition are extremely concerned about provisions of the bill that significantly cut the objects and principles of the parenting framework in the act.
As I said, families look to the legislation for guidance. They are not going to look back to a previous piece of legislation because of a referral in the act or an explanatory memorandum; they're going to look at what is in the law, so what we consider as a part of that is really important. We need to ensure that the appropriate levels of guidance to support families in their decision-making are considered in the act. We should look at it carefully and clearly. But those things that are in those provisions now that remain relevant should stay in the act so that families can find them easily, so they can look to them. Let's remember, people are often quite emotional in these circumstances. It's a difficult time, and the best possible guidance to them that we can provide is what we should be doing. They need to be found easily, where people can find them, where people can read them so that they can apply them.
One of the more important elements of the 2003 changes was the presumption of shared responsibility. Clearly, there have been some issues with that. Clearly, there have been some ways that it's been interpreted. But ensuring that parents take the appropriate level of responsibility in raising their children in the various ways that might apply is an extremely important principle. Rather than removing that presumption or that element of the act—because it was quite transformational when it came into effect—if it requires clarification, then that's what we should do. We shouldn't take it away; we should clarify it appropriately because, as I've said before, people look to the act.
Let's not forget that this provision was put into the act in a bipartisan way in the best possible way that it could be for this type of legislation, which I've said a number of times goes to the absolute heart of our community—to our families. In whatever form you might see your family, and I don't presume to put any overlay on that because the world has so changed in the last 20 years, if there's going to be a separation, our sincerest responsibility is to work closely together to provide the best possible guidance to people in our communities who are having to deal with this. It's a difficult time in their lives and it can define people for a long time, but our role is to ensure that we do our best possible job. We retain the elements that we know are of value and if we need to improve parts of the legislation—the definitions or the guidance—that's what we should do. We shouldn't be taking things out wholesale, particularly things that were important parts of previous reforms for very, very good reason. I thank colleagues for their indulgence during my presentation.
The coalition welcomes the Family Law Amendment (Information Sharing) Bill and it's the focus of my contribution. This bill builds on the work identified by the coalition in its time in government to better support families through challenging times by ensuring that family courts have the information they need when making orders in parenting matters. This change can actually make a difference to families who, unfortunately, through family breakdown, need to go through the family law system for an outcome, noting not all separations require court intervention. We know that parental separation affects 50,000 to 60,000 children in Australia each year. Separation, of itself, is painful and difficult, but when it involves children in dispute, that pain and complexity is elevated. The court system is complex and, yes, we can do better.
In 2020-21, there were nearly 50,000 divorce filings and nearly 22,000 interim order filings. Interim orders are temporary orders that are put in place until final orders are made by the court. In 2021, 50.3 per cent of family law applications related specifically to matters concerning children. The likelihood is that if a family matter has reached the courts, the relationship between the child's parents is already a difficult one.
As shadow minister for child protection and the prevention of family violence, I hear often of issues that impact child protection and family law. I'm pleased that this bill will address some of these issues. In the 2019-20 budget, the coalition provided funding to enable the co-location of state and territory family-safety officials in family courts to improve information sharing between the family law, family violence and child protection systems. In my many conversations with the family violence and child protection sector, with workers on the front line and with families, people often talk about the positive change that has occurred from the co-location of these services in the family law courts. The Australian Law Reform Commission handed down its report Family law for the future, and the coalition agreed with the recommendation to implement a national information-sharing framework.
Far too many family law disputes involve family violence, and we are all too aware of the devastating and long-term impact family violence can have. We know that an estimated 11 per cent of all Australian adults, or over two million people, have experienced violence from a partner. Children, unfortunately, are often less visible but, nonetheless, they also experience violence and trauma as witnesses and as victims. It is a massive problem that is growing at an alarming rate, and it exposes the need for even more responses that support those concerned about escalating behaviour and those who already use violence, to help them prevent escalation.
The National Framework to End Violence Against Women and Children 2022-23 and its associated action plans must ensure prevention and early intervention are giving appropriate attention to men, women and children if the framework is to deliver on its target of ending violence within a generation. For that to happen, when family members identify their behaviours are not safe or when perpetrators reach out for help, help needs to be there for them. It must be timely, it must be responsive and it must be appropriate for their needs. These are sensitive issues, but we must make it easier for people to reach out. If we did that, it would mean prevention and early intervention that was timely and responsive would serve them better. Doing that better might also avoid the disruption, harm and trauma that come with experiencing violence, which in turn might just mean fewer people experiencing separation and/or heading to the courts.
Timely information is important. We know all too well that, when a family is off to the courts, the situation can change quickly as their family law matter progresses through the courts. Information that was put before the courts, say, six months ago might not be the information the court needs to make the best possible orders today. For instance, if family violence has escalated or other matters around child protection arise, the court needs to know that the situation has changed in order to make a good decision for the entire family. Single Mother Families Australia and the Council of Single Mothers and their Children told the committee looking into this legislation that, indeed, the lack of shared information has been an impediment to both good court processes and workable, fair parenting orders. The National Children's Commissioner hopes this bill will allow the Family Court to be better placed to consider comprehensively and holistically what is in the child's best interests, based on information relating to a child's individual needs and circumstances.
The national information-sharing framework was intended to guide the sharing of information between the family law, family violence and child protection systems. The timely sharing of critical information about the safety, welfare and wellbeing of families and children can indeed keep people safe. That work progressed in partnership with all jurisdictions through the Standing Council of Attorneys-General and its successor bodies. In November 2021, all jurisdictions endorsed the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. One of the features of the national framework was a shift away from subpoenas issued by the parties to a family law dispute. It had one very simple objective:
… to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect, and support informed and appropriate decision-making in circumstances where there is, or may be, a risk of family violence, child abuse, or neglect.
The framework moved towards targeted requests for information and court initiated orders. Rather than relying on parties to issue subpoenas, the framework was intended to empower courts to access family safety information.
The national framework envisaged that a broad range of state and territory agencies would be information-sharing agencies. It expressly included state and territory child protection or child welfare departments, state and territory policing agencies and firearms registries. But it also envisaged flexibility to include other bodies into the future. This could mean that Corrections, Youth Justice and even non-government organisations such as specialist family violence services could participate. The former coalition government intended to give effect to a very simple principle: if a person's safety is a concern in court proceedings, all relevant information should be before the court to ensure decision-making is fully informed. Imagine that. Imagine a system where information-sharing was the norm, not the exception—a system that truly protected and cared for the parties involved in family disputes.
This bill achieves four main things. The first achievement of this bill is to introduce two different types of information-sharing orders: the short-form order, which is called an order for particulars, and an order to produce these documents or information. These provisions replace the existing, more limited information-sharing provision in the Family Law Act. Secondly, the bill allows the family law courts to obtain a broader range of information than is possible under existing information-sharing arrangements. This recognises that family violence and child abuse and neglect are complex and can take a number of different forms, and that they can impact children, even if not directed at them. The Family Court should not be unduly limited in the information it can take into account when making parenting orders. Thirdly, the bill expressly outlines legal exclusions to information-sharing, such as documents that are privileged or information that would endanger a person if disclosed. Fourthly, it restricts the issue of subpoenas without leave of the court. The bill says that if an information-sharing order requires the production of documents, a party can only issue a subpoena with leave. This is intended to reduce duplication and avoid the cost and time associated with subpoena processes.
The bill will rely heavily on regulations to prescribe state and territory bodies as information-sharing agencies, and those agencies can be directed to produce information. The regulations will also create rules around the production, storage, disclosure and disposal of information in line with the national information-sharing framework.
I acknowledge the sector contribution that has gone into informing the Family Law Amendment (Information Sharing) Bill. A lot of their work has contributed to this bill. This bill does make sense. This bill is a welcome development.
I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023 in the debate here today. I know as a senator for over nine years and through my electorate office and also my involvement in various committees that there are few things in life and in our jobs as MPs that cause the same difficulties and complexities for families and result in consideration here in the parliament and in our offices than family law. It's a fact that every year tens of thousands of Australians find themselves going through the pain and sadness of separation. All too often the cases that are not more readily resolved are the ones that come through our doors. Certainly they are ones where the children inevitably suffer the most. In a small proportion of these cases disputes will be decided by a judge in Australia's family law courts. I think all in this chamber agree that we as a nation should aim for a system that resolves as many of these disputes as possible as quickly and as cleanly as possible in the circumstances and that where children are involved we must at all times prioritise their interests.
Some of my colleagues have already articulated that there are a number of measures in these bills that are very welcome, particularly in the information-sharing bill. Many of the bills we have seen come through this place in the last nearly 18 months from the Labor Party had been done without sufficient consultation and, even where consultation was done and Senate committees were given an appropriate amount of time to reflect on the bills that came before this place and how to improve them, the Labor Party simply dismissed and discarded those concerns. We have seen a litany of those come through in recent times—everything from organ tissue donations to, more recently, pharmacists and industrial relations. Unfortunately, the pattern for the Labor Party now has been to treat almost all bills that come through here a bit like ambit claims for the trade union movement. That is certainly the tactic they've employed time and time here in this place. Sadly, the consequence of ramming things through with the support of the crossbench and the Greens, is that the legislation is all the poorer for it. In this case it will have significant outcomes for families going through one of the most stressful and traumatising circumstances in their life.
Many changes in the Family Law Amendment Bill are based on good intentions. We join the government in recognising that many of the problems this bill seeks to address are in need of solutions, but yet again, as I said, in too many places the proposals put forward by the government do not align with the actual problems they are seeking to address. As a number of my colleagues have mentioned, they go beyond recommendations made by previous reviews, they are not supported by the legal profession, they have unintended consequences or they have not been road-tested with community organisations who day in and day out deal with these most challenging issues.
The coalition have grave concerns. Although we join with the government—as we always have, whether we are in government or opposition, taken a very bipartisan approach to this—the solutions in this legislation are untested. Sadly, we believe that many of the changes will actually inadvertently—I've no doubt—make things worse for Australian families. I also acknowledge my colleague Senator Paul Scarr, who just entered this place, for the work he has done personally on this bill and for what he has noted on this. He has been incredibly productive and insightful. It's a shame that the government hasn't taken a lot of these concerns seriously. I recall that, when the last major reforms went through in both places, there was a very bipartisan approach to this type of legislation. There were many Labor luminaries on the review at the time under John Howard, and there was much greater consideration and consultation with the legal profession and organisations and across the chamber at the time. I think this bill is all the worse for it.
In my remarks today I will focus on part 1 of schedule 1, which is the objectives and principles of the parenting framework. Schedule 1 of the bill drastically cuts the objects and principles of the parenting framework in the Family Law Act. That is not necessarily a bad thing, because it is complex, long and hard to interpret. In itself, it repeals objects and principles that have guided families and also courts and mediators for many years, and they're set out in section 60B of the act. The explanatory memorandum to this bill says it all. Despite appearances to the contrary, the intention is not to lose the objects and principles, but, clearly, that's what it actually does. The explanatory memorandum says:
The repeal and substitution of section 60B does not indicate that the repealed objects and principles are no longer relevant.
Clearly, it's saying that they should still be relevant. The EM continues:
Rather, the intention is to simplify the objects to better assist with the interpretation of Part VII and avoid duplication with section 60CC which sets out what the court must consider when determining what is in the best interests of the child.
Clearly, the intent is still there. The problem—there are several—in particular is the message that this repeal sends, particularly when viewed as a larger part of the changes in schedule 1.
As the act currently stands, the intent of the parliament is crystal clear. Summarised, it says that the parenting framework intends to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives where, of course, it is in the best interests of the child to do so. The parenting framework is also intended to protect children from abuse, neglect and family violence. It's also designed to ensure that children receive adequate and proper parenting and that parents fulfil their own duties and responsibilities to meet these requirements. These things currently in the act are not controversial. They were formed in a spirit of bipartisanship, and as principles they remain supported by both sides of politics.
There are also some general principles that underlie these objectives. These actually say that, where it's not contrary to the best interests of a child, children have a right to know and be cared for by both of their parents; children have a right to spend time and communicate with their parents and others who are significant, such as their grandparents and other relatives; parents jointly share duties and responsibilities for raising their children; parents should agree about the parenting of their children; and children have a right to enjoy their culture. Again, these principles are not controversial, and they were not when they were implemented under the Howard government. The Attorney-General's own explanatory memorandum says that they are still relevant.
Here is the crux of the problem from the coalition's point of view. If they are still relevant they should remain in the bill. If they are truly still important to the government, you don't take them out and make a reference in the explanatory memorandum, which, over time, gets completely lost. Certainly, people involved in mediations and people involved in court cases will not be going back to obscure explanatory memorandums in this place. They will be looking at the act itself. So, the risk is that, when this is read in conjunction with other changes to the bill, the overwhelming message is that the parliament is reversing its support for principles that have successfully guided tens of thousands if not hundreds of thousands of parents.
At law, the words in the explanatory memorandum will be used to determine the meaning of the law only if a provision is ambiguous or obscure, or if the ordinary meaning of the words of the statute leads to a result that is manifestly absurd or unreasonable. We all know this in this place, and it is the subject of a lot of debate over many bills and explanatory memoranda. But I keep coming back to the main principle: if those principles are so important—and they are, and we all agree they are—they should stay in the bill. It is not yet too late to make amendments to ensure that those principles are in the bill, to send and to keep sending that clear message to jurists, to families and to mediators that those are the guiding principles. And, as I've said, certainly none of them will have the need or even the knowledge to go diving for a 91-page explanatory memorandum, in which this is buried somewhere in the middle. Most families, fortunately, will never go to court, but they will make decisions in the shadow of the law. If this is no longer the law of the land, then it is very, very clear that there will be turmoil, pain and far more fractious than necessary relationship management issues in and out of the courts.
Part 2 of schedule 1, which I believe is the most significant part of schedule 1, would repeal the presumption of equal, shared parental responsibility. In part 1, which I've just discussed, it starts to make more sense as to why they've taken those principles out. And I'll just repeat: the most significant part of schedule 1 would repeal the presumption of equal, shared parental responsibility that applies when courts make orders. The history of this is incredibly important. The introduction of that presumption was a triumph of bipartisanship and sensible reform for families. If you applied the commonsense test, any and all Australians would absolutely believe in the presumption of equal, shared responsibility as a starting point in any family law matters when courts are making parenting orders.
Prior to 2003 there was widespread concern about how courts dealt with contact and residency issues for children when a marriage broke down. The way courts approached those issues before left many parents feeling excluded from their child's lives after separation. Certainly those of us who were either in politics or working in electorate offices at the time knew just how fractious and how incredibly difficult it was for one parent or the other to be excluded from their child's lives and from having access. Against that backdrop, which many of us here will remember, Prime Minister Howard commissioned an inquiry into the family law system, chaired by Kay Hull AO, which resulted in the landmark report Every picture tells astory. The report was, quite simply, remarkable, and its recommendations were unanimous and bipartisan. It involved a roll call of senior Labor MPs, and they all joined coalition members of the committee to work through this issue over a number of years.
Unfortunately for families who are currently going through family breakdown and for those who will in the future, this bill removes many of those important guardrails that were introduced in 2006. The Australian Law Reform Commission, at the initiative of the former coalition government, did not recommend such a removal—for very good reason. The ALRC said it supported the idea that a presumption of shared parental responsibility serves as a great starting point for negotiations between parents and recommended that the concept be retained. I don't think any normal and sensible Australian would ever disagree that that was the right approach.
In conclusion, Labor's amendments go much further than has been recommended and than I believe any reasonable Australian would want. For those reasons, I call on the Labor Party to consider amendments. It is not too late.
I, too, rise to make some remarks on the Family Law Amendment Bill 2023, and I commend the comments from my colleague Senator Reynolds and, particularly, Senator Scarr, who was on the committee that reviewed this. Having been in the other place—the House of Representatives—from 2004 to 2007, as well as here in the Senate, whilst much of my work has focused around national security issues, there is no issue that I have dealt with in my time in this place that has more significantly affected people, caused so much financial, mental, emotional and relational pain—often abuse—or caused people to engage out of desperation and hurt with their elected representatives seeking remedy. I have known Kay Hull well, and the work that she did back in 2003. I came in just at the end of that committee inquiry, but was here during the period where then Attorney-General Ruddock was implementing a lot of the reforms into family law. There is no topic that is more complex because of its interaction with human nature, relationships and emotions than this area, and it is one that has to be dealt with effectively and compassionately, but also in a time frame that makes sure changes that we make actually deliver the outcomes that will improve things. My experience to date has said that there is no silver bullet. There is no change that is going to make everything good for everyone overnight, but at least we should be incrementally improving the system that we have.
One of my concerns with this legislation, and one of the reasons that I will be calling on both the government and the crossbench to give serious consideration to the amendments that are being moved by Senator Cash, is that the hearing for this lasted one day. That's one day for a topic that, through my time here in the House and in the Senate, there have been extended inquiries giving people the opportunity to not just have their views heard but also, when draft legislation has come forward, have the opportunity to delve into. Will it be effective and, importantly, will there be unintended consequences? Will this lead to outcomes that actually take us backward, that make the situations for both parents and, particularly, children even worse than they currently are? I am appalled—it would not be too strong a word to use—that the committee was given only one day to engage with stakeholders, whether they be in the legal profession or otherwise, around this legislation. I think that is a manifestly inadequate period to understand the likely efficacy and the potential for unintended consequences of this. So I encourage people to consider seriously the amendments put forward by Senator Cash—not treating them as a partisan issue but as a genuine attempt to make sure that we keep moving forward and improving legislation, as opposed to potentially going backwards.
There are two areas that I wish to talk about: schedule 1 part 2, which is around the presumption of equal shared parental responsibility; and schedule 2, regarding the enforcement of child-related orders. They are two issues that, through my time—particularly as a member of the House of Representatives—have been raised with me frequently. Certainly, schedule 2—the enforcement of child-related orders—is something that people have continued to bring to my attention because of the great financial, emotional and other impacts on them when those child-related orders are not enforced and there are imbalances of power in the relationship. It's a problematic area.
Before I go into those in detail, though, I do wish to give some overarching comments about how we, as a society, address this issue. I mentioned that I came in at the end of Kay Hull's work, and one of the things that led to that review back at that period was the concern about the disappearance of fathers from their children's lives in the aftermath of separation and divorce. That drove a fair degree of interest. Interestingly, I'll go to President Obama, who's not someone I quote often because he comes from a different political view, perhaps, to mine. I'll quote from a speech that he gave:
Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. They are teachers and coaches. They are mentors and role models. They are examples of success and the men who constantly push us toward it.
But if we are honest with ourselves, we'll admit that what too many fathers also are is missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it.
I think that's a realistic assessment of two things. One is that there's a role for both parents, but that both parents have to step up to that role and fulfil it. One of the challenges that we see now with the degree of dysfunction in families is that many young men have not had role models. They have not seen in their own lives an example of what it means to be a father. So one of the things we should be saying as a society is: how do we get alongside and help people to understand how to be a father—in fact, how to be a husband? How do you communicate? How do you relate and have an emotional EQ as well as an IQ, a work ethic and all those other things?
This never comes cheap. But I think it's worth noting some of the research that highlights the mental health issues, which are doubled for divorced men and women as opposed to those who remain married, and the high, and rising, rate of suicide following marriage breakdown. Divorced women have taken their lives at a rate four times that for married women, while the rate is up to three times for men. Financially, AMP and NATSEM have highlighted the different impacts after a marriage comes apart. They've said that, whether it's income equity, debt levels or long-term wealth potential from a financial perspective, divorce is a loss-loss outcome.
Why should government care, even if we set apart the fact that we want people to flourish and that we want wellbeing amongst our community? From a purely financial perspective, back in 2004 when I first started to get into this, some of the research that I looked at from the then Department of Family and Community Services indicated that, on average, a marriage breakdown for an average family with two children equalled $352 million each year in additional support by the taxpayer writ large to families who had suffered breakdown. I notice that in 2014—10 years later—News Corp had done a study, and their assessment was that divorce was costing the economy $14 billion a year. So even from a crass financial perspective, there's a real incentive for government to work out how we can do better to support people who've come together in marriage not to go down the path of seeing that break apart—to find ways to stop that.
There are things that have been tried. During the period when Mr Ruddock was the Attorney-General, I was involved with him in seeking to shape not just the establishment of what was coming out of various reviews—Professor Patrick Parkinson had a large hand in that—but the family relationship centres, which were designed initially to make the process of separating less confrontational, with less angst, to allow people to go their separate ways without that impact on them and their children. Three of the first areas that eventually became part of their aim was to help couples about to be married to get information on premarriage education; to help families wanting to improve their relationships to get information about family relationship education and other services that can help strengthen relationships; and to help families having relationship difficulties to get information on and referrals to other services to help prevent separation. The rest of it was all the postseparation part. I'm not convinced that was ever funded as well as it could or should have been.
We see examples in other governments, such as in New Zealand, where then finance minister Bill English set up, along with their tax working group and their capital markets working group, a welfare working group in 2008 to do a detailed analysis of why the government was spending large amounts of money to support people through various streams, such as mental health, education, the prison system et cetera. Family breakdown was a key precursor to much of that expenditure, and they put in place some interventions.
What it says to me is that there are some ways in which it is worth it for the government to spend money upfront to help people to appreciate the work of people like Gottman, who developed the cascade theory of marital dissolution. He concluded that a lasting marriage results from a couple's ability to resolve the conflicts that are inevitable in any relationship. This comes down to two things: (1) having the desire, the motivation, to do it—so understanding why it's important—and (2) having the tools to do it. I would argue that it is worth it for the Commonwealth to spend money on that.
Very quickly, I will move on to the two parts that are of concern. One is about the presumption of equal shared parenting responsibility. I have looked through the long list of recommendations that came out of the Law Reform Commission's work on this. They noted that there was a lack of understanding on the part of many people. The expectation of some going into this whole process of separating was that there should be equal time, and that was causing problems. But what we see was that the original presumption was something that was supported by all sides of Australian politics because of the importance of having both parents in the life of a child. I understand that relabelling, and there are various words that have been used. I look through some of the submissions that were given to the committee and to other processes. Professor Bruce Smyth, for example, stated that there is 'still a role for law to send out a radiating message that both parents matter, and that children need both their parents to be involved in their lives after separation'. A number of witnesses highlighted that, in attempting to implement the recommendation of the ALRC, these changes, rather than rebadging the presumption, basically remove it.
There is so much evidence here in Australia and overseas that this presumption is in a child's best interests, all things being equal—obviously not in situations of violence et cetera, but, even in the laws that were put in place under the Howard government, things like domestic violence and the potential for harm to a child were grounds to not have that equality. So, whilst I'm supportive of the view that we should refine expectations about equal responsibility, which doesn't necessarily mean equal time, what this legislation does is to overreach and go too far. There are many submissions—including from Professor Smyth, the Family Law Practitioners Association of Western Australia, the Hunter Valley Family Law Practitioners Association and the Family Law Practitioners Association of Queensland—highlighting in reasonably lengthy ways their concerns with the fact that this presumption is being removed, and that is something that I do not support.
Schedule 2 is about the enforcement of child related orders. This is a complex area because of the interaction between Commonwealth and state jurisdictions, but it is something that we need to act on. Schedule 2, I am not convinced would do it. Even the ACT Bar Association has given evidence again in the committee report highlighting some concerns around this and their conclusion was that, rather than simplifying it, they've actually made it a different complex mess. Those two areas are of particular concern of mine, having dealt with them over a range of years. I implore the Senate to consider the amendments by Senator Cash.
The Family Law Amendment Bill 2023 and Family Law Amendment (Information Sharing) Bill 2023 will amend the Family Law Act 1975 with the stated purpose being to make the family law system safer and simpler and to ensure that the best interests of children are placed at its centre. The amendments implement a number of recommendations from the Australian Law Reform Commission's 2019 report into the state of Australia's family law system and elements of the government's response to the 2021 joint select committee inquiry into Australia's family law system.
There are nine schedules to the bill, which include the redrafting of provisions to do with the enforcement of parenting orders and the protection of personal information in Family Court proceedings. Schedules 2 to 6—amendments aimed at acknowledging Aboriginal or Torres Strait Islander notions of family and kinship; schedule 3—changes to the role of the Independent Children's Lawyer; schedule 4—the introduction of a new harmful proceedings order, a power to prevent a vexatious litigant from filing new applications without first obtaining leave; schedule 5—a regulation-making power with respect to family report writers; and schedule 7.
The key amendments are in schedule 1, which amends the legislative framework for making parenting orders, including changes to the section which covers the factors to be considered when making parenting arrangements in the best interests of the child. This schedule also repeals the presumption of equal shared parental responsibility and the mandatory consideration of certain time arrangements for parents.
There is a strong focus amongst stakeholders on these amendments, with many supporting them, some suggesting improvements and some raising concerns about their impact. I note that a number of stakeholders, including the Law Council of Australia, emphasised that proper resourcing must follow reform, particularly as several of the proposed reforms may have significant funding implications.
The amendments in the bill implement a number of the recommendations, as I noted from the Australian Law Reform Commission's 2019 report into the state of Australia's family law system and of course also in the government response to the 2021 joint select committee. It also makes consequential amendments and minor amendments to the Federal Circuit and Family Court of Australia Act 2021. I've talked about the structure briefly and the list of nine schedules. Again, schedule 1, which will be my primary focus with my views today, contains amendments to the legislative framework for making parenting orders, including changes which cover the factors to be considered when making parenting arrangements, again, noting this is when it's in the best interests of the child. It's interesting to think about how it can be in the best interests of the child when we're actually repealing the presumption of equal shared parental responsibility and consider it would be in the best interest of a child if both of their parents were fully engaged and responsible for their life outcomes.
We need to stop for a moment and consider that nobody when they start a relationship and a family want to end up in separation or divorce or in the Family Court. It is not a happy outcome; nobody plans or aims to end up there. As legislators, we have an obligation to ensure that, when they do, they understand and have clarity on the process and that they don't have to deal with the unintended consequences of decisions that we've made here because we haven't thought through the practical application of the things they will need to deliver based on our decisions. That is in particular with respect to the best interests of the child. Children have very little control on the road to the Family Court, so it's our responsibility to make sure that the time they spend there doesn't damage them, is as short as possible and delivers the best possible outcomes, given the circumstances, for themselves and their family.
We also need to consider what the impact of the change from 'a meaningful relationship' to just 'a relationship' will be. Does that include a bad relationship? Does that include a fractured relationship? Does that mean a relationship with occasional contact? If we can't answer these questions, we need to think about what the purpose of this change is—why we are taking this word out. Is it just a word? What is the broader implication of removing this word? What is it that we are trying to make better by taking out the word 'meaningful'? I can't think of anything that would improve in this process—sadly, having been through it myself—by taking out the opportunity for a child to have a meaningful relationship with a parent. We need to consider that sometimes, particularly before a court, the child becomes an unwilling participant in what can become a feud between their parents. We need, as much as possible, to protect children from that. We need to consider all of this, of course, through the appropriate lens relating to family and domestic violence—to consider that it is not just physical but, as we now better understand, about things like coercive control and financial abuse.
I do note that the current list of factors is long. As most of us know, if something is long it can often be confusing and complicated. There are two 'primary' considerations and 14 'additional' considerations. The list runs to over three pages and is about 900 words long. That's a lot of information to take in. It can be confusing and difficult for parents and courts, and I agree that it should be simplified. But there are real concerns about the simplified list of considerations that has been proposed by Labor in this bill. The bill does not strike the appropriate balance, especially as it relates to the best interests of the child. It goes too far in its simplification. The wording of the bill is ambiguous, and that is not something that we want or can afford in such a critical and deep-reaching area of family law. Losing the word 'meaningful' is a significant change. It is not just a word. Let me repeat that: it's not just a word. It sends important signals to the court about the type of relationship that is in the best interests of the child. It also sends those signals to the vast majority of separating couples who don't go to court and are not represented by lawyers but who instead make decisions themselves in the shadow of the law. It sends a signal about the quality of the relationship. Supervised visits once a month or once every two months, on a birthday or at Christmas or Easter, every school holidays—are they a meaningful relationship? They may be a relationship, but who do they benefit? It also has deep implications for extended family networks, because the list says the court needs to consider the benefit to the child not just of a relationship with parents but of a relationship with others who are significant to the child. For some children, relationships with their grandparents, aunties, uncles, cousins or step-siblings may be hugely important, and existing meaningful relationships can change to just 'a' relationship. Whether we want to accept it or not, there is damage that comes with that. But the court doesn't need to consider the benefits of a meaningful relationship with those people—only the benefits of 'a' relationship. Bodies like the Law Council of Australia have expressly raised this as an issue that needs to be corrected. It is an oversight in the legislation that should be corrected. In some instances, the most meaningful relationships a child will have are those with grandparents, aunts or uncles. We need to think about that.
We need to think about the consequence of the court being required to consider any views expressed about the child and whether they are actually the views of the child. As currently drafted, some could encourage others to coach or pressure a vulnerable child. It creates a scenario where a child is perhaps espousing the views of a particular parent or relative. Concern has been raised by the legal profession, and I expect this is also a concern more broadly in relation to the impacts of the wellbeing of a child, where they may be pressured or feel obliged to become an active participant in a dispute between their parents. A process which began as serving the best interests of the child can become one where a child is impacted or damaged by that same process.
The simplified list doesn't require the court to consider existing family violence orders and the basis on which they're made. This is entirely inconsistent with what is in the best interests of the child. If the family home is dangerous or violent, then that is a matter that the court must consider. This is an issue that we in the coalition raised during the committee process. It is not a departure from the existing practice, where things like family violence orders are usually considered, but it is surprising. The failure to include it adds weight to our concerns about the attempts to ram this bill through without any real attempt to scrutinise or negotiate in relation to this piece. It is also worth noting the concern raised by some in the profession that Labor's list risks overlooking a number of important factors.
The list doesn't include anything else that is relevant to the particular circumstances of the child. It's not a cookie-cutter process; there are always extenuating and special circumstances. There is no guidance on the face of the statute about the child's maturity level or their level of understanding; whether a parent has been engaged in parenting in the past, including their obligations to maintain the child financially; the likely impact of any change in circumstances; and the logistical practicalities of any arrangement. These things could be referred to in legislative notes, as some in the profession have suggested. We hope and trust that the courts will be able to take these into account.
I listened with great interest to the contribution of Senator Scarr, who raised some very good, well-considered points. I also read his comments on the recent committee report on the bill. One statistic that jumped out at me was that an AIFS study found that 53.7 per cent of parents who used the courts as their resolution pathway in 2014 reported that physical violence was relevant to their situation prior to separation. Let me repeat that: 53.7 per cent said that physical violence was a factor in their situation prior to separating, highlighting the importance of safety and the history of violence in the family home. Yet there is no consideration of this. We're saying to a child that's been subjected to family or domestic violence in their home that when they come to the Family Court it's not something we're going to think about or that we think a court ought to think about in determining what happens to that child. I can't really get my head around how that is in any way, shape or form in the best interests of anybody, but, in particular, of that child.
I think there is good intention being displayed in relation to these bills, but it is clear that they need more work. There are some holes here, and these must be addressed before they become law. They must be addressed by us here before they impact any more children unnecessarily.